Synopsis

Unopposed motion to dismiss claim against State for alleged sexual abuse of
infant in State registered day care facility granted where State appeared to
have followed all laws, rules and regulations regarding registration of family
home care facility.

Defendant's motion for summary judgment pursuant to CPLR 3212 seeking an order
dismissing the instant claim on the grounds that the defendant followed all
established statutes, rules, regulations and procedures relative to the
registration of Elaine Phillips as a registered family daycare home provider and
that the State had no prior notice of any allegations of sexual abuse in
relation to the daycare afforded by such registered provider is granted.
Georgianna Thomas, individually and as parent and natural guardian of the named
infant claimants, chose not to oppose the
motion[1]. The claim seeks monetary damages for
the alleged sexual abuse and maltreatment of three infant claimants allegedly
perpetrated by the adolescent son of a State registered family daycare home
provider and contains a derivative claim for loss of services by the infants'
parent and natural guardian, Georgianna Thomas. Claimants allege that the
defendant had prior knowledge and/or notice of the alleged perpetrator's conduct
"by virtue of prior complaints and/or incidents." It is alleged that the sexual
abuse and maltreatment upon which this claim is based occurred between late June
1997 and August 6, 1997 while the infant claimants were in the care and custody
of the registered daycare provider.

The defendant's motion seeking dismissal of the claim as a matter of law is
supported by copies of the pleadings, transcripts of examinations before trial
of the following individuals: Mabel Leon (Regional Manager of Bureau of Early
Childhood Services of the New York State Office of Child and Family Services
[OCFS]); Sharon Morris (employee of OCFS and former daycare licensor for the New
York State Department of Social Services[2]);
Michael Quinn (Manager of the Child Abuse and Maltreatment Register [OCFS]);
claimants Georgianna Thomas, Rahla Thomas, Quinyan Thomas and Quayland Thomas; a
copy of this Court's decision and order dated June 12, 2001 filed June 14, 2001
and the affirmation of defendant's counsel (Glenn C. King) dated June 25,
2001.

As tragic as the event giving rise to this claim appears to be, liability for
the alleged unlawful sexual abuse of an infant[3]
by a minor child of a registered family daycare home provider (Elaine Phillips)
cannot be predicated against the State which is not an insurer of the safety of
infants in daycare settings absent proof of the existence of a special
relationship between the alleged infant claimants and the State (see,
Boland v State of New York, 161 Misc 2d 1019, affirmed, 218 AD2d
235). Here, unlike in Boland, supra, no proof has been offered
that the State breached a duty to the alleged victim(s) imposed upon it by law,
rule or regulation and that such breach was a proximate cause of the claimants'
injuries.

On this motion the State presented evidence which establishes prima facie that
the Department of Social Services followed all applicable statutes, rules and
regulations with regard to the registration of the family daycare home provider
and that the State properly investigated the only formal complaint received by
the department concerning the subject provider prior to the incident giving rise
to this claim. That complaint related to the possibility of drug activity at
the daycare home's location. After investigation the complaint was determined
to be unfounded. The proof also demonstrates that no further complaints subject
to investigation by the department were made and that a hotline call upon which
the claimants had hoped to rely to show the State's prior notice of a dangerous
condition giving rise to liability did not require the State to investigate or
to take action other than to refer the information to local law enforcement
officials which the State did[4].

The evidence offered, which stands unrefuted on the motion, is sufficient to
support the State's request for summary judgment dismissing the claim on the
grounds asserted. The claim is, accordingly, dismissed.

[3]Although the claim had alleged that all three
infant claimants had been sexually abused, Quayland and Quinyan denied that any
abuse whatsoever was perpetrated against them at their respective examinations
before trial (see, Exhibits 10 and 11).

[4]This information was the subject of a prior
motion which resulted in a decision and order of this Court dated October 30,
2000 and filed November 1, 2000.